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John Bair
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Judge Blocks Litigation Funding Agreements in NFL Concussion Case

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The NFL concussion situation and litigation has been an area of fascination for many Americans these past few years. At the Bairs Foundation, we have been closely following a number of issues regarding funding for the high-profile plaintiffs involved in these cases. For example, their lawyers are arguing that RD Legal breached the settlement agreement, because plaintiffs weren’t allowed to give outside funders an interest in their claims. More recently, Judge Anita Brody issued a ruling that voided all existing litigation funding agreements between the former football players and numerous lending companies. She is also prohibiting them from moving forward. This means none of the individuals pursuing these cases in court will be able to receive any financial assistance from a funding company while they seek justice.

NFL concussion lawsuit

First, Judge Brody explains that those participating in the class action are obviously cognitively impaired and thus may not fully understand what they are agreeing to when they enter a third-party funding agreement. A third-party funder entering an agreement with a class member should know that simple fact. To top it off, “the anti-assignment language in the Settlement Agreement clearly states the intent that Class Members are unable to make assignments. Thus, the Court has little sympathy for a Third-Party Funder that will not receive a return on its ‘investment.’ ”

Essentially, this decision states that the existing non-recourse lending industry should have known better than to try to take advantage of these individuals, and if they lose money on any of the loans they’ve already advanced, well, too bad for them.

See, the for-profit, non-recourse industry is unregulated, and for years its practices have been questioned with regard to usury and predatory lending. Still, little has been done to change the industry or put guidelines in place. The NFL concussion litigation is just one example of how business models in the litigation finance industry can make the cost of capital exorbitant for plaintiffs.

Still, access to capital is critical for many people in litigation who have exhausted their resources before receiving their settlement. That’s exactly the reason we founded the Bairs Foundation. Our 501(c)(3) nonprofit organization provides financial assistance to plaintiffs in litigation at 7% simple interest. We also offer advice and equip clients to make the best financial decisions possible, rather than simply offering an advance. Recipients receive individualized counseling specific to their circumstances, so they can use their funds wisely and economically.

It is our hope that the Bairs Foundation’s lending model will be an inspiration to more nonprofits and companies in the civil justice space, so families have durable options when they’re in need.

 

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    This is going to continue to be an important and interesting legal battle given all that is at stake. With most pro football athletes presenting with signs of CTE, the stakes are higher than ever.

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